In an important ruling, which may not get many headlines but which holds implications for the ability of states to exert control of federal Indian lands, the U.S. Supreme Court has ruled in favor of the State of Rhode Island and Providence Plantations (the official name of the state — great for trivia buffs). Some background on the dispute is here.
The American Bar Association Journal explains the significance, and likelihood of a legislative response to re-establish federal authority:
The U.S. Supreme Court has limited the authority of the federal government to transfer land in trust for the benefit of Indian tribes.
The decision is a victory for states seeking to prevent such transfers in an effort to control development on Indian lands …. The ruling today by Justice Clarence Thomas held that the 1934 Indian Reorganization Act applied only to tribes recognized by the federal government at the time the law was enacted…. In the case before the court, Carcieri v. Salazar, the state of Rhode Island had argued the Narragansett Indian Tribe was not authorized to transfer 31 acres of federal land into a federal trust because it did not obtain federal tribal status until 1983.
State officials feared the tribe wanted to build a casino on the site and that the transfer into the trust could remove state authority to ban construction.
Guy Martin, a partner at Perkins Coie who was formerly commissioner of natural resources for Alaska, told the ABA Journal that today’s decision could affect “dozens and dozens” of tribes that weren’t recognized or under federal jurisdiction in 1934. He sees the potential for more litigation over the meaning of “federal jurisdiction” if the U.S. government or third parties move to invalidate trust acquisitions by these tribes. He points to opinions by four concurring and dissenting justices raising the issue, including a concurrence by Justice Stephen G. Breyer. The Breyer concurrence said some tribes not recognized by the federal government in 1934 law might still have been under federal jurisdiction “even though the federal government did not believe so at the time”….
Martin also says there will likely be calls for a legislative solution. “This decision is strong enough and creates so much doubt that there’s no question there will be calls for congressional action to try to resolve this before it turns into a series of very contentious court actions.”
Catch that last paragraph — calls for a legislative solution. In other words, if the Democratic Congress and President do not like the decision, they will pass a new law reasserting federal control, like happened with the Supreme Court’s ruling on suits for back pay. So will the Democratic legislative cavalry come to the aid of reasserting federal government control?
That’s a bet I might be willing to take. You see, for Democrats, it works both ways. When they don’t like a legislative decision, they ask the courts to overrule it; when they don’t like a court decision, they ask the legislature to overrule it. When Republicans try something like that, they are accused of not respecting “the rule of law.”
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